New York State Court of Claims

New York State Court of Claims

LOPER v. THE STATE OF NEW YORK, #2004-013-001, Claim No. 107222, Motion No. M-67379


Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Claimant's attorney:
Defendant's attorney:
Attorney General of the State of New York
Assistant Attorney General
Third-party defendant's attorney:

Signature date:
January 14, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


On October 15, 2003, the following papers were read on motion by Claimant for an order permitting a supplement to the complaint [sic]:
Notice of Motion, Affidavit and Exhibits Annexed

Opposing Affirmation and Exhibits Annexed

Filed Papers: Claim

Upon the foregoing papers, this motion is denied.

The claim herein was filed on January 21, 2003 and alleges the Defendant's liability for the loss (theft) of certain magazines from a "book box" at the Wende Correctional Facility. It is alleged that some 12 magazines which Claimant values at $135.48 were allegedly discovered missing, and that, inter alia, Claimant filed an institutional administrative claim therefor on or about November 17, 2002, when it appears he became aware of the delineated missing personal property. Thus, it appears that the existing cause of action accrued on November 17, 2002.

In this motion, Claimant seeks to "supplement" his claim to include the alleged loss of some 37 additional magazines, at an additional alleged value of $45.95, of which he was not aware until January 12, 2003 (see Exhibit 4 to the moving papers). Exhibit 4 is an inmate claim form dated January 19, 2003, which encompasses the proposed additional losses of personal property, and which, in and of itself, is a first step of the statutorily required exhaustion of administrative remedies, a condition precedent to the pursuit of an action for the loss of personal property by an inmate (Court of Claims Act §10[9]). Thus, the statute precludes the commencement of such a claim until the exhaustion of administrative remedies.

The State's opposition to this request for relief is founded in part upon the mystifying theory that an inmate claimant must serve and file a claim for the loss of personal property within 180 days [sic] from the exhaustion of such administrative remedy, citing Court of Claims Act §10(9). That statute requires such service and filing within 120 days (not 180 days) after the date on which the Claimant has exhausted such remedy. Furthermore, and somewhat inexplicably, the Defendant, besides erroneously affirming that the 180 days constitutes a statute of limitations applicable here, also affirms that "in order to avail himself of this time period claimant must first have served the Attorney General with a Notice of Intention to File a Claim within 90 days as required by section 10(3) of the Court of Claims Act." Indeed, quite to the contrary, it has been held that there is no provision in §10(9) authorizing the service of a notice of intention to extend the time within which a claim must be filed and served (see, Roberts v State of New York, Ct Cl, #2003-009-19 [Claim No. 107029 - Motion Nos., M-66227, M-66234], June 3, 2003, Midey, J.; Gloster v State of New York, Ct Cl, #2002-011-550 [Claim No. 103662 - Motion No. M-64877], June 5, 2002, McNamara, J.).[1] In any event, I am unaware of any action in this Court which mandates the service of a notice of intention to file a claim as a prerequisite to the service and filing of a claim.

Regardless, the current application appears to allege a subsequent occurrence, raising a new and separate cause of action for the loss of personal property, and CPLR 3025 does not permit the amendment of an existing claim to assert a new cause of action. Any claim asserting a cause of action for the loss of Claimant's personal property on or about January 12, 2003, must be served and filed in accordance with Court of Claim Act §10(9), and not as a supplement to a claim filed just nine days after accrual of the newly alleged cause of action, and prior to the commencement of any administrative remedies related thereto. Accordingly, the motion to supplement Claim No. 107222 is denied.

While some question arose as to when Claimant became aware of the May 5, 2003 denial of his appeal and the exhaustion of his administrative remedies, the 120-day period for the commencement of such new and distinct claim has passed, and Claimant's only apparent remedy, should he be so inclined, is an application for permission to file a late claim (see, Wright v State of New York, ____ Misc 2d _____ , Ct Cl, #2003-013-010 [Claim No. 104699 - Motion No. M-65879], March 26, 2003, Patti, J.). Regardless, the motion herein is denied.

January 14, 2004
Rochester, New York

Judge of the Court of Claims

  1. [1]Unpublished decisions and selected orders of the Court of Claims are available via the Internet at